IN ARRIVING AT THE DETERMINATION that the exclusionary rule

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1 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 1 3-JAN-14 14:43 The Knock-and-Announce Rule and Police Arrests: Evaluating Alternative Deterrents to Exclusion for Rule Violations By DR. CHRISTOPHER TOTTEN & DR. SUTHAM COBKIT(CHEURPRAKOBKIT) * Introduction IN ARRIVING AT THE DETERMINATION that the exclusionary rule no longer applies to knock-and-announce violations, 1 the Supreme Court s rationale in Hudson v. Michigan 2 included the idea that factors other than exclusion exist to prevent police misconduct concerning the knock-and-announce rule. 3 Particular examples of these alternative factors relied upon by the Court are improved training, education, and internal discipline of police: Dr. Christopher Totten is an Associate Professor of Criminal Justice (Law) in the Department of Sociology and Criminal Justice at Kennesaw State University. He has a JD and LLM from Georgetown University Law Center and an AB from Princeton University. He is the criminal law commentator for Volumes 46 through 50 of the Criminal Law Bulletin. Dr. Sutham Cobkit (Cheurprakobkit) is a Professor of Criminal Justice and Director of the Master of Science in Criminal Justice Program in the Department of Sociology and Criminal Justice at Kennesaw State University. He has a PhD in Criminal Justice from Sam Houston State University. * Both authors would like to thank the College of Humanities and Social Sciences at Kennesaw State University for providing a grant that partially funded the study described in this Article. 1. The knock-and-announce rule usually requires police to knock and to give notice to occupants of the officer s presence and authority prior to entering a residence to make an arrest or conduct a search. 18 U.S.C (2012). If the police comply with the rule, but the occupants refuse to grant admittance, the police may break into the residence by, for example, destroying a door or window. Id. During a trial, the exclusionary rule generally prohibits the admission of evidence against a defendant if the police obtained the evidence while violating the defendant s constitutional rights (e.g., during an illegal search or arrest). See Mapp v. Ohio, 367 U.S. 643, 660 (1961) (directing the states to apply the exclusionary rule) U.S. 586 (2005). 3. Id. at

2 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 2 3-JAN-14 14:43 72 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 48 Another development over the past half-century that deters civilrights violations [such as a knock-and-announce violation] is the increasing professionalism of police forces, including a new emphasis on internal police discipline.... [W]e now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been wide-ranging reforms in the education, training, and supervision of police officers. 4 For example, according to the Supreme Court in Hudson, if officers fail to adhere to constitutional norms such as the knock-andannounce rule, they can be disciplined in a way that will impede them from advancing in their occupation. 5 Additionally, the Supreme Court in Hudson noted that various forms of citizen review can prevent police misconduct concerning the knock-and-announce rule. 6 In fact, the majority of Justices in Hudson suggested that the growing presence and power of the alternative deterrence factors (police training, education, internal discipline, and citizen review mechanisms) since the time of Mapp v. Ohio 7 may mean that exclusion of evidence following all Fourth Amendment errors by police may no longer be required (though the majority refrained from adopting this approach as a matter of Fourth Amendment search-and-seizure law at least for the time being) See id. at (quoting SAMUEL WALKER, TAMING THE SYSTEM: THE CONTROL OF DISCRETION IN CRIMINAL JUSTICE, , at 51 (1993)). However, criminologist Samuel Walker explained that Justice Scalia, who wrote the majority opinion in Hudson, misquoted him on the idea that police education, training, and supervision (e.g., discipline) can serve as substitutes for exclusion as deterrents for constitutional misbehavior by police. See Samuel Walker, Thanks for Nothing, Nino, L.A. TIMES, June 25, 2006, at M5 available at articles.latimes.com/2006/jun/25/opinion/oe-walker25 ( [Justice Scalia] twisted my main argument to reach a conclusion the exact opposite of what I spelled out in this and other studies.... My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court s interventions (Mapp [concerning the application of the exclusionary rule in state courts to deter Fourth Amendment violations by police] and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse. ) (italics added). 5. Hudson, 547 U.S. at 599. For example, police may be suspended or dismissed from their jobs, or they may receive a demotion in rank or decrease in pay. Id. 6. Id U.S. 643 (1961) (directing the states to apply the exclusionary rule). 8. Justice Scalia, who wrote the majority opinion in Hudson, stated: We cannot assume that exclusion in this context is necessary deterrence simply because we found that it was necessary deterrence in different contexts and long ago. That would be forcing the public to pay for the sins and inadequacies of a legal regime that existed almost half a century ago.

3 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 3 3-JAN-14 14:43 Summer 2013] THE KNOCK-AND-ANNOUNCE RULE AND POLICE ARRESTS 73 Moreover, though in Hudson the relevant knock-and-announce violation occurred during a police search at premises, lower federal and state courts since Hudson have applied its ruling to knock-and-announce violations by police in the arrest context. 9 Thus, these courts have effectively determined that the exclusion of evidence in court is no longer warranted following police knock-and-announce violations during arrests of suspects at premises. 10 The basis of this Article is a study consisting of a detailed survey of police chiefs in large Unites States cities. Given both the Hudson decision s rationale and implications and the subsequent application of Hudson by the lower courts, the objectives of this study are threefold: (1) to examine the chiefs knowledge concerning the knock-andannounce rule in the context of police arrests at premises; (2) to evaluate how the chiefs perceive officer training concerning knock-andannounce procedures in the context of police arrests at premises; and (3) to analyze how the chiefs perceive the value of exclusion versus the various, alternative factors to prevent police misconduct during arrests at premises implicating the knock-and-announce rule, including the factors of police training, education, internal discipline, and citizen review mechanisms. This is the first significant study since Orfield s studies of the late 1980s 11 and Perrin s work of the 1990s 12 to empirically evaluate the Id. at 597. Justice Scalia posited that today, as compared to the 1960s when Mapp was decided, there are alternative deterrents to police misconduct in the search and seizure area, such as civil lawsuits, internal police discipline/supervision, training, and education, which have the potential to effectively replace exclusion. Id. at Three other Justices seemed to agree with Scalia s reasoning in this regard; however, Justice Kennedy, who joined the majority decision, drafted a separate concurring opinion in which he commented that the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. See id. at 603 (Kennedy, J., concurring). 9. See United States v. Pelletier, 469 F.3d 194 (1st Cir. 2006); State v. Marcum, No. 04-CO-66, 2006 WL (Ohio Ct. App. Dec. 28, 2006). 10. See Pelletier, 469 F.3d 194; Marcum, 2006 WL For a lengthier explanation of the studies by Orfield and Perrin on the exclusionary rule, see infra Part I.D. Orfield, in his two studies in the late 1980s and 1990s, concentrated mostly on the alternative deterrent factor of civil lawsuits. See Myron Orfield, Jr., The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016, (1987) [hereinafter Orfield, The Exclusionary Rule and Deterrence]; see Myron Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 83 (1992) [hereinafter Orfield, Deterrence, Perjury, and the Heater Factor]. The study discussed in this Article will evaluate alternative deterrent factors, aside from the exclusion of evidence, for police misconduct during arrests that implicate the knock-and-announce rule. These factors include internal police discipline, police education and training, and community oversight, such as citizen review boards. In addition, the respondents in Orfield s study included police officers and detectives, while

4 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 4 3-JAN-14 14:43 74 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 48 efficacy of alternative factors to exclusion for police misconduct in the Fourth Amendment arrest area, and this is the first known empirical study to assess the value of various alternatives to exclusion in the knock-and-announce arrest area in light of Hudson s emphasis on these alternatives. 13 No other known study has examined police chief knowledge of the knock-and-announce rule in the arrest context or police chief perception of officer training in this context. Additionally, in contrast to the earlier studies that focused more on patrol officers and investigators, this study examines police chiefs. Finally, this study covers all cities throughout the United States consisting of more than 100,000 residents. This geographical coverage is more expansive than previous studies. 14 the respondents in this Article s study are police chiefs. See Orfield, The Exclusionary Rule and Deterrence, supra, at Apart from Orfield s work, the study by Perrin in the late 1990s is the only other significant scholarly work evaluating alternative deterrent factors to exclusion for police misconduct in the search and seizure area. See L. Timothy Perrin et al., If It s Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 IOWA L. REV. 669, 701 (1998). Perrin s study concentrated mostly on police officers perceptions of the various deterrents (and, to a lesser extent, the perception of detectives and other ranking officers), while the study in this Article concentrates on the perceptions of police chiefs. See id. at 719 ( Close to half of those participating in the study held the rank of officer at the time they responded to the questionnaire, about one-fifth held the rank of detective, and the remainder, about onethird, held a rank above detective. ). 13. Though the Supreme Court has referred to the results of empirical studies on the exclusionary rule in several decisions, it has exhibited less confidence toward the findings of these studies, generally affording them only cursory treatment. See United States v. Janis, 428 U.S. 433, 453 (1976) ( Empirical statistics are not available to show that the inhabitants of states which follow the exclusionary rule suffer less from lawless searches and seizures than do those of states which admit evidence unlawfully obtained. Since as a practical matter, it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled. ) (quoting Elkins v. United States, 364 U.S. 206, 218 (1960)); Stone v. Powell, 428 U.S. 465, 492, n.32 (1976); Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) About the Costs of the Exclusionary Rule: The NIJ Study and Other Studies of Lost Arrests, 1983 AM. B. FOUND. RES. J. 611, 619 (1983) (noting that the inadequacies of research design and the measurement problems lead to the conclusion that it is quite unlikely that there will be any rigorous measurement of the rule s specific deterrent effect in terms of how often illegal searches have been prevented ). For the cursory treatment afforded scholarly studies of the exclusionary rule by the Court, see Hudson, 547 U.S. at (asserting, without any supporting data, that [t]here is also evidence that increasing use of various forms of citizen review can enhance police accountability ). Hudson s choice and reliance on earlier studies to support the idea that police today are better disciplined, trained, and educated is weak at best. See id. For a lower court s interpretation of Hudson, see infra Part I.C. 14. This study also includes greater geographical diversity and scope than the earlier studies by Perrin and Orfield, which were generally restricted to either one city or county. See Perrin, supra note 12, at (study participants mostly from Ventura County, California); Orfield, The Exclusionary Rule and Deterrence, supra note 11, at (studying drug officers in Chicago). R R

5 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 5 3-JAN-14 14:43 Summer 2013] THE KNOCK-AND-ANNOUNCE RULE AND POLICE ARRESTS 75 Part I of this Article explains the knock-and-announce rule, the Supreme Court decision in Hudson v. Michigan, related Supreme Court case law on the exclusionary rule, and lower court cases interpreting Hudson. Part I also includes an examination of other empirical studies regarding the exclusionary rule. Part II describes the research methods utilized in the current study s methodological approach, including information about the sample and survey instrument. Part III discusses the study s findings as well as the conclusions that can be derived from those findings. Overall, the study finds that a majority of police chiefs are knowledgeable about the knock-and-announce rule in the context of police arrests at premises. In addition, the majority of chiefs perceive that officers receive enough training on the knock-and-announce rule in the arrest context. Finally, the police chiefs perceive that training, education, and internal discipline have a greater deterrent impact on police misconduct related to this rule in the arrest context than exclusion of evidence and community oversight (though a majority do perceive exclusion as a helpful deterrent in this context). Part IV explores the study s numerous implications for judicial and law enforcement policy. I. Background Part I begins by explaining the knock-and-announce rule and Hudson v. Michigan, a landmark 2006 decision by the Supreme Court regarding the exclusionary rule. It then describes related Supreme Court exclusionary rule jurisprudence, in particular jurisprudence suggesting that alternative factors can replace exclusion as a deterrent to police search-and seizure-misconduct. Next, it explains relevant lower court case law interpreting Hudson, including case law examining Hudson s application in the police arrest context. Finally, it describes previous, related empirical studies on the exclusionary rule. A. The Knock-and-Announce Rule and Hudson v. Michigan 15 Despite the Supreme Court s incorporation of the knock-and-announce rule into the Fourth Amendment reasonableness inquiry and the rule s long-standing history within our Common Law, the rule may 15. This Article includes an excerpt from The Exclusionary Rule After Hudson v. Michigan: Mourning the Death of the Knock and Announce Rule, which originally appeared in Criminal Law Bulletin, Volume 46, Issue 5, with permission Thomson Reuters. Part I.A has been substantially excerpted with additional edits for clarity and content.

6 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 6 3-JAN-14 14:43 76 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 48 have recently suffered a fatal blow in the Supreme Court s decision in Hudson v. Michigan. The rule requires police to give notice of their presence and their authority before entering a dwelling. 16 If the police comply with the rule but are subsequently refused admittance by the dwelling s occupants, they may break into the dwelling by, for example, destroying a door or window. 17 The origins of the knock-and-announce rule can be traced to a 1604 English court decision known as Semayne s Case. 18 In that case, the English court required law enforcement officers to announce their purpose before entering a dwelling. 19 In the United States, the knock-and-announce rule has been made part of both the country s statutory and case law. The first United States case to incorporate the knock-and-announce rule into its decision was Read v. Case 20 in In 1917, the United States Congress first codified the rule into what is currently 18 U.S.C The rule states: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. 23 In Miller v. United States, 24 the Supreme Court determined that this statute applied to arrests and searches both with and without warrants. 25 The Court found that the police violated the knock-and-announce rule because they failed to announce their authority before breaking the door to Miller s apartment. 26 Though the Supreme Court interpreted the knock-and-announce rule in other decisions after Miller, 27 not until the 1995 case of Wilson v. Arkansas 28 did the U.S.C (2012). 17. Id. 18. Semayne s Case, (1604) 77 Eng. Rep. 194 (K.B.); 5 Co. Rep. 91 a. 19. Id. at 195; 91 b Conn. 166 (1822). 21. See id. 22. Act of June 15, 1917, ch. 30, Title XI, 8-9, 40 Stat U.S.C U.S. 301 (1958). 25. Id. at Id. at See, e.g., Sabbath v. United States, 391 U.S. 585 (1968) (finding that a breaking under 18 U.S.C occurred when police opened a closed, but unlocked, door without first announcing their authority and presence) U.S. 927 (1995).

7 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 7 3-JAN-14 14:43 Summer 2013] THE KNOCK-AND-ANNOUNCE RULE AND POLICE ARRESTS 77 Court incorporate the rule into the reasonableness inquiry of Fourth Amendment jurisprudence. 29 Significantly, the Court in Wilson alluded to particular exigent circumstances when law enforcement officials do not need to comply with the knock-and-announce rule. 30 These circumstances may include the threat of harm to law enforcement officials or third parties, the possible destruction of relevant evidence, or the potential escape of the suspect(s). 31 In Richards v. Wisconsin, 32 the Court clarified these exceptions to the knock-and-announce rule by indicating that police must knock-and-announce unless they have a reasonable suspicion that their action would be dangerous or futile, or that it would inhibit the effective investigation of crime by, for example, allowing the destruction of evidence. 33 More recently, the Supreme Court has found that the Fourth Amendment does not require a more heightened standard than reasonable suspicion for the issuance of no-knock warrants 34 and that, under the same Amendment, a period of fifteen to twenty seconds is a reasonable time for law enforcement officials to wait after knocking and announcing but before breaking into a home. 35 In its June 2006 decision in Hudson, authored by Justice Scalia, the Supreme Court significantly undercut the viability of the knockand-announce rule by specifically holding that exclusionary rule principles do not apply to knock-and-announce violations. 36 Furthermore, the decision arguably portends the end of the exclusionary rule for other Fourth Amendment violations. Justice Scalia s majority opinion in Hudson began by acknowledging that Hudson involves a clear violation by police of the knock-andannounce rule. 37 The police in Hudson entered a home pursuant to a 29. Id. at Id. at Id U.S. 385 (1995). 33. Id. at United States v. Ramirez, 523 U.S. 65, (1998). In dicta, however, the Court stated that excessive property damage caused by police during a search may implicate the Fourth Amendment s reasonableness requirement. Id. at United States v. Banks, 540 U.S. 31, 33 (2003) (ruling that the potential for disposal of drug evidence by occupants, under an overall totality of the circumstances analysis, warranted a Fourth Amendment reasonableness finding). Note that the Court in Banks recognized that the determination of reasonableness was a close one. Id. at U.S. 586, 599 (2006). 37. Id. at 590 ( From the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation. ).

8 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 8 3-JAN-14 14:43 78 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 48 valid warrant authorizing a search for drugs and guns and discovered both items of contraband. 38 The police announced their presence prior to entering and waited only three to five seconds before turning the knob of the unlocked front door and entering Hudson s home. 39 Hudson challenged the quick entry into his home as unreasonable, and the state conceded from the start of the case that the entry constituted a knock-and-announce violation. 40 The Court held that the exclusionary rule was not the proper remedy for this constitutional error. 41 Scalia began his analysis of why the exclusionary rule is not an appropriate remedy in the knock-and-announce context by arguing that insufficient causation exists between a violation of the knock-andannounce rule and subsequently discovered evidence. 42 The necessary but-for causation was absent because [w]hether that preliminary misstep [of violating the knock-and-announce rule] had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the [evidence] inside the house. 43 Another reason Justice Scalia offered in support of Hudson s holding was that the societal interests protected by applying the knockand-announce rule are not served by applying the exclusionary rule. 44 The exclusionary rule is generally applied because unless and until a valid warrant has issued, citizens are entitled to shield their persons, houses, papers, and effects from the government s scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement. 45 But the purpose of the knock-and-announce rule does not include the shielding of potential evidence from the government s eyes. 46 Rather, it serves three purposes that Justice Scalia found qualitatively different: (1) preventing harm to police and others because an unannounced entry may provoke violence in supposed self-defense by the surprised resident ; 47 (2) protecting property from unnecessary damage by knock-and-announce rule gives individuals the opportunity to comply with the law and to avoid the 38. Id. at Id. 40. Id. at 588, Id. at 590, Id. at Id. 44. Id. at Id. (quoting U.S. CONST. amend. IV). 46. Id. 47. Id.

9 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 9 3-JAN-14 14:43 Summer 2013] THE KNOCK-AND-ANNOUNCE RULE AND POLICE ARRESTS 79 destruction of property occasioned by a forcible entry ; 48 and (3) protecting those elements of privacy and dignity that can be destroyed by a sudden entrance, such as giving someone an opportunity to put on clothing. 49 Scalia reasoned that none of these three purposes would have been served by excluding the evidence of the guns and drugs found in Hudson. 50 Scalia then applied the Court s typical balancing test when deciding whether to apply the exclusionary rule in any given context. 51 He determined that the social costs of applying the exclusionary rule to knock-and-announce violations outweighed the deterrence benefits. 52 In addition to the usual grave adverse consequence that exclusion of relevant incriminating evidence always entails (viz., the risk of releasing dangerous criminals into society), 53 Scalia identified two additional social costs associated with applying the exclusionary rule in the knock-and-announce context. 54 The first was that such a remedy would generate constant litigation to determine whether the rule applied and, if so, whether it was violated. 55 The second was a concern that the application of the exclusionary rule to knock-and-announce violations could lead to unnecessary over-deterrence. 56 This latter concern arose because officers might wait longer than desired after knocking and announcing both to ensure compliance with the knockand-announce rule and to avoid the exclusion of probative evidence. 57 This, in turn, has the potential to produce preventable violence against officers in some cases, and the destruction of evidence in many others. 58 In terms of the deterrence benefits from applying the exclusionary rule to knock-and-announce violations, Scalia concluded that such benefits would be minimal. 59 The threat of civil lawsuits for violations of the knock-and-announce rule, rather than the [m]assive deter- 48. Id. at 594 (quoting Richards v. Wisconsin, 520 U.S. 385, 393 n.5 (1997)). 49. Id. 50. Id. ( What the knock-and-announce rule has never protected, however, is one s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable. ). 51. Id. 52. Id. at Id. at Id. at Id. at 595 (citing Penn. Bd. of Prob. & Parole v. Scott, 523 U.S. 357, 366 (1998)). 56. Id. at Id. at Id. 59. Id. at 596.

10 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 10 3-JAN-14 14:43 80 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 48 rence of the exclusionary rule, should be a sufficient deterrent to police misconduct. 60 This is because ignoring knock-and-announce can realistically be expected to achieve absolutely nothing except the prevention of destruction of evidence and the avoidance of life-threatening resistance by occupants of the premises dangers which, if there is even reasonable suspicion of their existence, suspend the knock-and-announce requirement anyway. 61 Scalia s remaining reasons for finding minimal benefits in applying the exclusionary rule are especially noteworthy. This is because Scalia s comments may portend an end to the Court s use of the exclusionary rule in other contexts outside the knock-and-announce area. 62 Scalia commented that: We cannot assume that exclusion in this context is necessary deterrence simply because we found that it was necessary deterrence in different contexts and long ago. That would be forcing the public to pay for the sins and inadequacies of a legal regime that existed almost half a century ago. 63 According to Scalia, since 1961, when the Court first applied the exclusionary rule to the states in Mapp v. Ohio to deter Fourth Amendment violations by police, civil rights lawsuits for Fourth Amendment violations have become both more available and more frequent. 64 For Scalia, these suits provide an effective, alternative remedy to the exclusionary rule for Fourth Amendment violations such as knock-and-announce violations. According to Scalia, another effective remedy against Fourth Amendment violations that has developed since the days of Mapp v. Ohio includes the increasing professionalism of police forces, including a new emphasis on internal police discipline. 65 Law enforcement officials today, better trained and educated than they were in the 1960s, understand the permissible, constitutional boundaries for their conduct under the Fourth Amendment. 66 As an example of how increased police discipline will deter Fourth Amendment violations, Scalia mentioned that officers who do not comply with Fourth 60. Id. at Id. at The dissent recognized this possibility, as well: The majority s substantial social costs argument is an argument against the Fourth Amendment s exclusionary principle itself. Id. at 614 (Breyer, J., dissenting). 63. Id. at Id. at Id. at Id. at 599. For Justice Scalia, [f]ailure to teach and enforce constitutional requirements exposes municipalities to financial liability. Id.

11 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 11 3-JAN-14 14:43 Summer 2013] THE KNOCK-AND-ANNOUNCE RULE AND POLICE ARRESTS 81 Amendment principles will not advance in their careers. 67 Lastly, the decision in Hudson posited that various forms of citizen review may prevent police from violating the knock-and-announce rule. 68 Justice Kennedy wrote a short concurring opinion in which he joined the majority in all but one section of the decision. 69 Kennedy stated, somewhat mysteriously, that the Court s decision should not be interpreted as suggesting that violations of the [knock-and-announce] rule are trivial or beyond the law s concern. 70 He also commented that the majority opinion in Hudson should not be read as casting doubt on the exclusionary rule in general. 71 Kennedy s opinion reflected his belief that the Court s holding is based principally on a causation argument; that is, there is an insufficient causal link between knock-and-announce violations and subsequent discoveries of evidence to justify exclusion. 72 Finally, Justice Kennedy pointed out that, had the record in Hudson reflected a widespread pattern of knock-and-announce violations, the decision may have been different. 73 According to Justice Breyer in the dissent, precedent, logic, and policy considerations all dictate the contrary result from that reached by the majority in Hudson. 74 In terms of clear logic supported by precedent, Breyer argued that since a violation of the knock-and-announce principle translates into a violation of the Fourth Amendment s reasonableness requirement, evidence obtained after an unannounced entry must be excluded because the use of evidence secured through an illegal search and seizure is barred in criminal trials. 75 Justice Breyer also clearly believed that not applying the exclusionary rule in this context would undermine deterrence of unlawful police conduct. 76 Civil rights lawsuits would not provide an adequate deterrent effect because damages in such lawsuits are nomi- 67. Id. at Id. at This final part of Justice Scalia s opinion discusses three cases that he felt bolstered his conclusion that the exclusionary rule should not apply to knock-and-announce violations. Id. at Justice Kennedy did not join in this part of the opinion. Id. at 604 (Kennedy, J., concurring). Kennedy s only stated reason for doing so was that the cases mentioned in the last part of the majority opinion did not have as much relevance... as Justice Scalia appears to [have] conclude[d]. Id. 70. Id. at Id. at Id. 73. Id. at Id. at 608, 611, 614 (Breyer, J., dissenting). 75. Id. at 608 (quoting Wolf v. Colorado, 338 U.S. 25, 28 (1949)). 76. Id. at

12 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 12 3-JAN-14 14:43 82 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 48 nal 77 and civil immunities to effective suits frequently exist in this area. 78 Returning to precedent, Justice Breyer pointed out that the knock-and-announce rule does not fit squarely into either of two categories of exceptions the Court had already created in the Fourth Amendment / exclusionary rule context: (1) where there is a specific reason to believe that application of the rule would not result in appreciable deterrence ; 79 and (2) where admissibility in proceedings other than criminal trials was at issue. 80 Breyer found that there were no special social costs associated with applying the exclusionary rule in the knock-and-announce context. 81 In response to the majority s finding of attenuation from butfor causation, Justice Breyer believed there was indeed a sufficient causal link between the illegal entry and the discovered evidence. 82 The majority opinion, by separating the illegal entry from the subsequent search, both slice[d] the violation too finely and misconstrued the inevitable discovery doctrine. 83 With respect to the former point, Breyer reasoned that without the unlawful conduct, the police would not have been in the house and able to discover the probative evidence of the guns and drugs. 84 With respect to the latter point, he reasoned that the inevitable discovery doctrine would not apply to the facts in Hudson: The doctrine does not treat as critical what hypothetically could have happened had the police acted lawfully in the first place. Rather, independent or inevitable discovery refers to discovery that did occur or that would have occurred (1) despite (not simply in the absence of) the unlawful behavior and (2) independently of that unlawful behavior. The government cannot, for example, avoid suppression of evidence seized without a warrant (or pursuant to a defective warrant) simply by showing that it could have obtained a valid warrant had it sought one. Instead, it must show that the same evidence inevitably would have been discovered by lawful means Id. 78. Id. 79. Id. at 611 (quoting United States v. Janis, 428 U.S. 433, 454 (1976)). 80. Id. at Of course, the dissent admitted that the costs normally associated with exclusion would apply in the knock-and-announce context if the exclusionary rule were applied. Id. at Id. at Id. at Id. 85. Id. at 616 (citations omitted) (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)).

13 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 13 3-JAN-14 14:43 Summer 2013] THE KNOCK-AND-ANNOUNCE RULE AND POLICE ARRESTS 83 Since there had been no independent chain of events that would have inevitably led to the discovery and seizure of the evidence despite, and independent of, the knock-and-announce violation in Hudson, Breyer concluded that the inevitable discovery doctrine was inapplicable to the case. 86 Justice Breyer took issue with the majority s public policy conclusions and concluded that the majority had failed to recognize the extent of the privacy interests underlying the knock-and-announce rule. 87 For Breyer, the knock-and-announce rule does more than protect property from unnecessary damage or people from sudden startle; it protects the occupants privacy by assuring them that government agents will not enter their home without complying with those requirements (among others) that diminish the offensive nature of any such intrusion. 88 Justice Breyer also pointed out that it is immaterial whether the interests underlying the knock-and-announce rule are implicated by excluding particular evidence. 89 For example, the Fourth Amendment does not seek to protect contraband, yet we have required suppression of contraband seized in an unlawful search. 90 Thus, contraband can both be private and protected even when, as in Hudson, the items have little or nothing to do with the interests implicated by a particular constitutional rule. 91 Therefore, the analysis can proceed more simply: If a violation of knock-and-announce occurs, the ensuing search is unlawful and the discovered evidence should be excluded. 92 Finally, Justice Breyer attempted to recast the majority s argument that excluding evidence after knock-and-announce violations would lead to otherwise preventable violence against officers and the unnecessary destruction of evidence ( overdeterrence ). 93 For example, the majority believed that officers might be needlessly harmed because they might wait too long after knocking and announcing, but before forcibly entering a home, in order to ensure their compliance with the rule and avoid the exclusion of evidence. 94 Breyer recast this 86. Id. at Id. at Id. 89. Id. at Id. 91. Id. 92. Id. 93. Id. at Id. at 622.

14 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 14 3-JAN-14 14:43 84 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 48 argument by explaining that the majority was really attacking the knock-and-announce rule itself, and not the exclusion principle. 95 He claimed that the knock-and-announce rule adequately takes into account the majority s concerns by allowing officers to enter a dwelling immediately and unannounced when they harbor a reasonable suspicion that others may harm them or evidence will be destroyed. 96 According to Breyer, officers can also avoid uncertainty in the application of the exclusionary rule and the accompanying danger that results from waiting longer than necessary to enter a dwelling by obtaining a no-knock warrant from a magistrate or judge. 97 B. Related Supreme Court Exclusionary Rule Case Law The Supreme Court first applied the exclusionary rule to federal courts for search-and-seizure violations by police in its 1914 decision in Weeks v. United States. 98 It later applied the rule in 1961 to state courts in the now well-known case of Mapp v. Ohio. 99 In particular, Mapp found that evidence seized following Fourth Amendment search-and-seizure violations by police shall be excluded in state courts in order to deter police from committing these violations. 100 In other contexts outside the knock-and-announce area, the Supreme Court has relied upon the rationale that alternative deterrent factors such as police training and internal discipline can replace exclusion to deter police and other criminal justice professionals from illegal conduct prohibited by the Fourth Amendment. In particular, in Pennsylvania Board of Probation v. Scott, 101 the Supreme Court held that evidence found as a result of illegal searches and seizures by parole officers in violation of the parolee s Fourth Amendment rights should not be suppressed at parole revocation hearings in light of these other deterrent factors: Although this [supervisory] relationship [between parole officer and parolee] does not prevent parole officers from ever violating the Fourth Amendment rights of their parolees, it does mean that the harsh deterrent of exclusion is unwarranted, given such other deterrents as departmental training and discipline and the threat of [civil] damages actions Id. at Id. at Id. at U.S. 383 (1914) U.S. 643 (1961) (applying the exclusionary rule to the states) Id U.S. 357 (1998) Id. at

15 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 15 3-JAN-14 14:43 Summer 2013] THE KNOCK-AND-ANNOUNCE RULE AND POLICE ARRESTS 85 Moreover, in INS v. Lopez-Mendoza, 103 the Supreme Court, in part, rejected the application of the exclusionary rule in the context of civil deportation hearings to evidence unconstitutionally seized by immigration officers because [t]he INS also has in place a [disciplinary] procedure for investigating and punishing immigration officers who commit Fourth Amendment violations. 104 Finally, the Supreme Court believed that alternative deterrent factors could play a prominent role in deterring police from committing constitutional misdeeds in other contexts. For example, in crafting the inevitable discovery exception to the Fourth Amendment, one of the main doctrinal exceptions to the exclusionary rule, 105 the Court stated that [s]ignificant disincentives to obtaining evidence illegally including the possibility of departmental discipline and civil liability also lessen the likelihood that [this] exception will promote police misconduct. 106 C. Lower Court Case Law Interpreting Hudson Although state and lower federal courts are required to abide by the Hudson decision as a matter of federal constitutional law and in fact these courts have broadly interpreted Hudson they have been split on the issue of whether the alternative factors mentioned in Hudson are effective in deterring police search-and-seizure misconduct. Significant to the study presented here, and as evidence of the broad interpretation of Hudson, the First Circuit applied the Hudson rule to police knock-and-announce violations during the execution of an arrest warrant. 107 At least one state court has agreed with the First Circuit concerning this specific application of Hudson. 108 Moreover, as evidence of the expansive interpretation of Hudson, the Fifth Circuit extended the Hudson holding of non-exclusion to evidence seized by police following knock-and-announce violations under federal statutory law. 109 In U.S (1984) Id. at 1045 (citing INS, U.S. DEPT. OF JUSTICE, THE LAW OF ARREST, SEARCH, AND SEIZURE FOR IMMIGRATION OFFICERS 35 (1983)) JOHN N. FERDICO, HENRY F., FRADELLA & CHRISTOPHER D. TOTTEN, CRIMINAL PRO- CEDURE FOR THE CRIMINAL JUSTICE PROFESSIONAL (11th ed. 2012) Nix v. Williams, 467 U.S. 431, 446 (1984) (citing Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971)) United States v. Pelletier, 469 F.3d 194, 201 (1st Cir. 2006) See State v. Marcum, No. 04-CO-66, 2006 WL (Ohio Ct. App. Dec. 28, 2006) See United States v. Bruno, 487 F.3d 304 (5th Cir. 2007).

16 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 16 3-JAN-14 14:43 86 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 48 addition, the Sixth Circuit has applied the Hudson holding to knockand-announce violations by police during warrantless entries. 110 At least one state court has followed the Sixth Circuit in this application. 111 Finally, other state courts have applied the Hudson rule to verbal statements made by the defendant following the execution of a search warrant in violation of the knock-and-announce rule. 112 Certain lower courts have been unreceptive to the argument in Hudson that alternative factors such as police discipline and civil suits can effectively replace the exclusionary rule as a successful deterrent to police misconduct in the search-and-seizure area. 113 For example, the Third Circuit held that the exclusionary rule should remain the remedy for evidence seized by police during an illegal traffic stop because alternative factors such as improved police education, training, and discipline have not necessarily been successful in deterring police search-and-seizure misconduct. 114 In addition, one district court has found that the exclusionary rule should remain the chief mechanism for preventing Fourth Amendment warrant violations by police because exclusion leads police to adopt better training, supervision, and review procedures. 115 Other lower courts, however, have been more willing to consider the argument in Hudson that alternative factors can replace exclusion as a remedy for police violations in the Fourth Amendment searchand-seizure area. Specifically, certain federal courts agree with Hudson that civil lawsuits can adequately deter Fourth Amendment searchand-seizure violations. 116 D. Literature Review: Empirical Studies Regarding the Exclusionary Rule This section explains other significant scholarly studies on the exclusionary rule since the rule s adoption in the 1960s. In various 110. See United States v. Smith, 526 F.3d 306 (6th Cir. 2008) See In re Frank S., 47 Cal. Rptr. 3d 320 (Ct. App. 2006) See United States v. Kearns, No. 1:05-CR-146-WSD, 2006 WL (N.D. Ga. Sept. 15, 2006) See United States v. Mosley, 454 F.3d 249 (3d Cir. 2006); United States v. Ryan, No. 2:07-CR-35, 2008 WL (D. Vt. Mar. 31, 2008) See Mosley, 454 F.3d at Ryan, 2008 WL , at * See, e.g., United States v. Farias-Gonzalez, 556 F.3d 1181, 1189 (11th Cir. 2009) (regarding an illegal seizure of identifying information); United States v. Qing Li, No. 07- CR-2915-JM, 2008 WL , at *5 n.3 (S.D. Cal. Mar. 20, 2008) (regarding an illegal seizure of electronic information); United States v. Wellman, No. 1:08-CR-00043, 2009 WL 37184, at *7 n.8 (S.D. W. Va. Jan. 7, 2009) (regarding a Fourth Amendment violation).

17 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 17 3-JAN-14 14:43 Summer 2013] THE KNOCK-AND-ANNOUNCE RULE AND POLICE ARRESTS 87 Fourth Amendment contexts, these studies have all attempted to examine empirically the deterrent value of the exclusionary rule using social scientific techniques. One of the early, foundational studies on the value of the exclusionary rule is the 1970 study by Dallin Oaks. 117 Oaks analyzed arrest and conviction numbers in Cincinnati, Ohio, for weapons and narcotics offenses, both prior and subsequent to the Supreme Court decision in Mapp. 118 Oaks found that the Mapp decision s exclusionary rule had no significant deterrent effect on police misconduct during searches related to these offenses in Cincinnati. 119 In particular, the study showed that the rule had no measureable effect on the number of overall arrests and convictions by Cincinnati police for these of See Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665, (1970). Before Oaks s study, there were several studies concerning the exclusionary rule in the period immediately following the 1961 Supreme Court case of Mapp v. Ohio in which the Court first applied the exclusionary rule to state courts for evidence discovered during illegal police searches. See id. at (discussing previously published research on the effect of the exclusionary rule). In 1963, Stuart Nagel surveyed police chiefs, prosecutors, judges, defense attorneys, and ACLU officers in forty-seven states. The overwhelming majority agreed that the exclusion of unlawfully obtained evidence reduced illegal searches. Mapp had been decided in 1961, and Nagel asked whether police compliance with the Fourth Amendment had increased or decreased between 1960 and Seventyfive percent of the respondents in states without an exclusionary rule prior to Mapp said that compliance had increased, but only 57% of the respondents in the states that had an exclusionary rule prior to Mapp said so. Similarly, Michael Katz reported that 64% of the prosecutors, 62% of the defense attorneys, and 78% of the judges surveyed in North Carolina agreed that the [e]xclusion of evidence is an effective way of reducing the number of illegal searches. Albert Alschuler, Studying the Exclusionary Rule: An Empirical Classic, 75 U. CHI. L. REV. 1365, 1373 (2008) (citations omitted). When Katz inquired if [c]ivil and criminal proceedings against law enforcement officers should be the sole means of enforcing the requirements of legal search, 15% of the prosecutors agreed while only 5% of defense lawyers and 3% of the judges did so. Michael Katz, The Supreme Court and the States: An Inquiry Into Mapp v. Ohio in North Carolina. The Model, the Study and the Implications, 45 N.C. L. REV. 119, 134 (1966). Lastly, in the 1960s, Columbia University law students studied arrest information for minor drug crimes in New York City criminal courts immediately before and after Mapp. Comment, Effect of Mapp v. Ohio on Police Search-and-Seizure Practices in Narcotics Cases, 4 COLUM. J.L. & SOC. PROBS. 87, 87 (1968). Among specialized drug officers in New York City, arrests for minor drug offenses subsequent to Mapp fell by over 50%. Id. at 92. The authors noted that more than half of the arrests for these offenses prior to Mapp resulted from unconstitutional searches under the Fourth Amendment. Id In addition, Oaks found a drop in the number of gambling convictions. Oaks, supra, note 117, at However, since police gambling raids fell initially in 1959 two years prior to Mapp Oaks did not believe the decrease was due to any deterrence effects from Mapp, or from the exclusionary rule. Id Id. R

18 \\jciprod01\productn\s\san\48-1\san103.txt unknown Seq: 18 3-JAN-14 14:43 88 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 48 fenses. 120 Oaks had posited that if the exclusionary rule was exerting an effect on police behavior, both arrest and conviction numbers might reveal this effect. 121 Moreover, regarding stolen property, Oaks hypothesized that since police had reported that they violate searchand-seizure laws to retrieve stolen property, the deterrent effect of the exclusionary rule related to this type of violation could be shown if police were recovering less stolen property in the aftermath of Mapp. 122 However, Oaks found no immediate decrease in the amount of stolen property recovered by Cincinnati police following Mapp. 123 In another preliminary study on the exclusionary rule in the 1970s, James Spiotto examined changes in the number of motions to suppress evidence filed between 1950 and 1971 in Chicago criminal courts involving narcotics, gambling, and weapons crimes. 124 Spiotto hypothesized that a decline in the number of motions filed would suggest that the exclusionary rule was functioning as an adequate deterrent of unconstitutional police searches. 125 Spiotto found that while the percentage of winning motions to suppress fell during this period in gambling cases, it rose significantly in weapons and narcotics cases. 126 Spiotto concluded that the increase in the number of these motions in narcotics cases had two primary sources: (1) Chicago judges efforts to deal with their rapidly-rising narcotics caseloads by granting more motions to suppress in these particular cases; 127 and (2) the wider reliance on these motions as a flexible, discretionary tool for granting leniency for minor offenses, including certain drug crimes. 128 Regarding his findings for the gambling cases, Spiotto posited that the decline in motions was due to the fact that most of the gambling cases were not being handled by Chicago police and courts but instead were being addressed by federal law enforcement and 120. Id Id. at Id. at Id. at Oaks did point out that there was a gradual decrease in the amount of stolen property recovered in the years following Mapp, and this decrease may reflect a long range [sic] effect of the Mapp decision, with decreased recoveries of stolen property as police officers begin to accept and conform to the search and seizure [sic] requirements. Id. at 693. However, [t]his evidence by itself is inconclusive. Id James E. Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J. LEGAL STUD. 243, , 252 (1973) Id. at Id. at See id. at 252 (explaining that granting preliminary motions to suppress serves a screening function) Id. at 248 n.24. For additional discussion of the increasing narcotics caseloads in Chicago during this period, see Oaks, supra note 117, at 685. R